The opinion of the court was delivered by: J. R. BARTELS
Plaintiff moves to remand to state court this action alleging breach of contract and slander against his former employer, defendant British Airways. Plaintiff also seeks to impose costs and sanctions against defendant. British Airways cross-moves for dismissal and to enjoin plaintiff from filing further vexatious litigation. For the reasons set forth below, the motions to remand and for sanctions are denied, the motion to dismiss is granted, and plaintiff is enjoined from filing further action against British Airways and its employees absent prior court approval.
This rather protracted litigation originated in the Criminal Court of the City of New York where, in December 1988, Seyed Shafii, formerly a reservations sales agent with British Airways, filed a charge of criminal harassment against his former general supervisor, Jean Hendry. Shafii, an American citizen who is of Iranian descent, charged Hendry with making derogatory statements concerning his national origin while investigating an altercation between himself and a co-worker. Shafii and Hendry submitted their dispute to mediation at the Queens Mediation Center, and thereafter entered into an agreement (the "Mediation Agreement") which required Shafii to drop all criminal claims against Hendry in exchange for British Airways' promise "not to pursue any claims arising out of the case." The Mediation Agreement also provided that Shafii's dispute with Hendry would be treated as a work-related grievance subject to the collective bargaining agreement between British Airways and the International Association of Machinists and Aerospace Workers (the "IAM Agreement"), the union of which Shafii was a member.
Shafii charges that in violation of what he characterizes as a "standstill" provision in the Mediation Agreement, on January 11, 1989, British Airways relocated him to a different work area and placed him under the authority of another supervisor. Shafii alleges that British Airways again violated the standstill agreement when it terminated his employment on January 30, 1989. According to plaintiff, by means of the standstill agreement, British Airways agreed to refrain from taking any adverse action against him until the grievance mechanism of the IAM Agreement resolved his harassment claim.
Plaintiff's termination prompted him to file an employment grievance against British Airways in accordance with the procedures set forth in the IAM Agreement. Although British Airways maintained that plaintiff was discharged for insubordination, Shafii argued that he was transferred and dismissed in retaliation for his filing of the criminal complaint against Hendry. Shafii's grievance was denied, and on January 25, 1990, was submitted to arbitration in accordance with Article XV of the IAM Agreement. After the arbitrator rendered a decision and award upholding the discharge, Shafii commenced a district court action seeking to vacate the arbitration award pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq. (the "RLA"). Shafii asserted that he had been denied due process of law when the arbitrator allegedly refused, in conversations held off the record, to hear testimony and consider documentary evidence offered in support of his discrimination claim. Shafii originally sought to vacate the award in the United States District Court for the Northern District of New York. British Airways moved to dismiss that petition, arguing that Shafii's due process claim did not provide sufficient grounds for judicial review under the RLA, and alternatively, that venue properly lied in the Eastern District of New York. In Shafii v. British Airways, 22 F.3d 59 (N.D.N.Y. 1990) (NPM), the Honorable Neal P. McCurn held that the alleged due process violation adequately stated a basis for judicial review, but transferred the case to this District.
Plaintiff then moved this Court to amend his complaint, seeking to add claims alleging a breach of the purported standstill provision and a violation of 42 U.S.C. § 1981. British Airways opposed the motion and cross-moved for sanctions under Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927. In a memorandum-decision and order dated August 26, 1992, this Court denied both motions but imposed costs against plaintiff under 28 U.S.C. § 1920. In refusing to allow the amendment, the Court expressly held that it lacked subject matter jurisdiction over Shafii's proposed breach of contract claim. Shafii v. British Airways, 799 F. Supp. 292, 294 (E.D.N.Y. 1992).
The case again came before this Court on defendant's motion for summary judgment in Shafii v. British Airways, 872 F. Supp. 1178 (E.D.N.Y. 1993), vacated and remanded, 22 F.3d 59 (2d Cir. 1994). There the Court granted defendant's motion, finding it unnecessary to reach the merits of plaintiff's due process claim because the only proof offered in support thereof was, in the Court's view, inadmissible hearsay. The Court of Appeals for the Second Circuit vacated that holding in Shafii v. British Airways, 22 F.3d 59 (2d Cir. 1994), and remanded the issue of "whether plaintiff's allegations, taken as true, would constitute a denial of due process that would warrant vacating the arbitration ruling." 22 F.3d at 65. By memorandum-decision and order dated January 9, 1995, this Court again granted British Airways' motion for summary judgment, dismissing in its entirety plaintiff's action to vacate the arbitration award. Shafii v. British Airways, 872 F. Supp. 1178 (E.D.N.Y. 1995).
Notwithstanding his lack of success in arbitration and this forum, on November 9, 1994, plaintiff commenced an action in New York State Supreme Court, Queens County, alleging breaches of the Mediation Agreement and slander. Shafii's state court breach of contract claims mirrored the claim he previously sought to add when he moved to amend his federal complaint.
On December 9, 1994, defendant removed the action to this forum asserting federal question jurisdiction under 28 U.S.C. § 1337. The case now is before the Court on plaintiff's motion for sanctions and to remand to state court, and on defendant's motion to dismiss and to enjoin plaintiff from filing further vexatious litigation.
I. Plaintiff's Motion to Remand to State Court
Under 28 U.S.C. § 1447(c), a party may move to remand an action to state court where a procedural defect compromised the process of removal or the federal court lacks subject matter jurisdiction over the action. Begley v. Maho Bay Camps, Inc., 850 F. Supp. 172, 175 (E.D.N.Y. 1994). Here, Shafii contests removal of the case on the ground that his claims invoke only state law issues. According to defendant, plaintiff's two contractual causes of action are pre-empted by provisions of the RLA, and thus "arise under" federal statutory law. In addition, British Airways argues that removal of the defamation claim lies within the Court's discretionary authority to decide non-removable causes of action in conjunction with cases over which it has removal jurisdiction. See 28 U.S.C. § 1441(c).
Section 1331 of Title 28 confers upon the district courts original jurisdiction over "all civil actions arising under the Constitution, law, or treaties of the United States." Where, as here, a party bases removal on Section 1331, the federal claim must appear on the face of the complaint. Gully v. First Nat'l Bank, 299 U.S. 109, 113, 57 S. Ct. 96, 98, 81 L. Ed. 70 (1936); Greenfield v. National Westminster Bank USA, 846 F. Supp. 302, 304-05 (S.D.N.Y. 1994). Because the complaint itself must establish that the case arises under federal law, assertion of a federal defense, including pre-emption, does not provide grounds for removal. Nealy v. United States Healthcare HMO, 844 F. Supp. 966, 970 (S.D.N.Y. 1994) (citing Franchise Tax Bd. of California v. Construction Laborers Vacation Trust for S. California, 463 U.S. 1, 10, 103 S. Ct. 2841, 2846, 77 L. Ed. 2d 420 ). The courts have carved out an exception to this rule, however, where federal law so dominates "a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S. Ct. 1542, 1546-47, 95 L. Ed. 2d 55 (1987). In such cases, assertion of a preemption defense alone will support removal.
Here, plaintiff's claims are cast in terms of state law issues, and no federal cause of action appears on the face of the complaint. The complaint specifically seeks relief for alleged defamatory statements and for breach of the Mediation Agreement, a contract executed in conjunction with a state court criminal proceeding. In order to assess the propriety of removal, therefore, it is necessary to determine whether, as defendant suggests, Shafii's breach of contract claims are pre-empted by the RLA. In making this determination, defendant bears the burden of establishing that the case falls within the court's removal jurisdiction. Greenfield, 846 F. Supp. at 305. See also Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S. Ct. 35, 37, 66 L. Ed. 144 (1921).
Defendant has met its burden of demonstrating a right to removal. Generally, disputes growing out of differing interpretations of an existing collective bargaining agreement are pre-empted by the RLA's mandatory arbitration provisions and "must be resolved only through the RLA mechanisms." Hawaiian Airlines v. Norris, 129 L. Ed. 2d 203, U.S. , , 114 S. Ct. 2239, 2244 (1994). See also 45 U.S.C. § 151a. The same is true, however, of disputes growing out of an agreement that purports to modify an existing collective bargaining agreement. In rejecting plaintiff's attempt to amend his federal complaint, this Court expressly held that:
Shafii must seek relief exclusively through arbitration because the purported standstill provision would modify and is intertwined with operation of the employer's right to discharge an employee for cause and employee grievance procedures, both of which were previously secured through collective bargaining in the IAM agreement. The existence, if at all, and scope of any standstill provision substantially ...